Citation. 109 N.M. 769, 790 P.2d 1050, 1990 N.M. App. 16.
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In this action, the Defendant, Cotton (Defendant), appeals his convictions in the lower court of two counts of criminal solicitation.
Synopsis of Rule of Law.
The offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation.
Facts.
In 1986, the Defendant, together with his wife Gail, five children and his step-daughter, moved to New Mexico. A few months later, Gail and the children returned to Indiana. However, a short time later, the Defendant’s fourteen-year-old step-daughter moved back to New Mexico to reside with him. In May of 1987, the Defendant was arrested and charged with multiple counts of criminal sexual penetration of a minor and criminal sexual contact of a minor. While awaiting trial in jail, the Defendant discussed with his cellmate, James Dobbs (Dobbs), his desire to persuade his step-daughter not to testify against him. Later, the Defendant wrote a letter to his wife to persuade her to assist him by persuading his step-daughter not to testify. The Defendant asked Dobbs to obtain a stamp for the letter. However, Dobbs removed the letter and instead, inserted a blank page in the envelope. Dobbs then gave the original letter to the authorities. Later that month, the Defendant composed anoth
er letter to his wife, again seeking her assistance in preventing the step-daughter from testifying. However, that second letter was never mailed to the Defendant’s wife.
Issue.
Can a conviction on a charge of solicitation be upheld where the person intended to be solicited never receives a communication from the solicitor?
Held.
The Defendant’s convictions for solicitation are reversed and the cause is remanded with instructions to set aside the convictions.
Discussion.
The court discussed the differences between New Mexico’s statute and the solicitation provisions adopted by the Model Penal Code. The court noted that New Mexico’s legislature, when drafting their own solicitation section, specifically omitted that portion of Model Penal Code declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. This omission by the New Mexico legislature indicates a specific legislative intent to require some form of actual communication before a solicitation conviction may be upheld.
